Employee Benefits-IRS Issues 2009 Cumulative List of Changes in Plan Qualification Requirements

IRS Notice 2009-98 contains the 2009 Cumulative List of Changes in Plan Qualification Requirements (the “2009 Cumulative List”). The 2009 Cumulative List is to be used for guidance in amending qualified retirement plans, primarily by employers maintaining individually designed plans in Cycle E (i.e., the last digit of the employer’s EIN is 5 or 0). Cycle E begins on February 1, 2010 and ends on January 31, 2011. Pursuant to IRS Notice 2008-108, as an alternative to submitting a plan in Cycle D (February 1, 2009 – January 31, 2010), an employer, whose first plan year beginning after 2008 ends on or after February 1, 2010, may defer submission of its plan until Cycle E.

Under Rev. Proc. 2007-44, each year the IRS issues a list which identifies statutory, regulatory, and other changes to the plan qualification rules, and which must be taken into account by employers who submit applications to the IRS for individual determination letters on or after the February 1st following the date of issuance. The 2009 Cumulative List reflects law changes under, among other acts, the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), with technical corrections made by the Job Creation and Worker Assistance Act of 2002 (“JCWAA”), the Pension Funding Equity Act of 2004 (“PFEA”), the American Jobs Creation Act of 2004 (“AJCA”), the Pension Protection Act of 2006 (“PPA ’06”), the U.S. Troop Readiness,Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, the Heroes Earnings Assistance and Relief Tax Act of 2008 (“HEART Act”), the Emergency Economic Stabilization Act of 2008 (“EESA”), and the Worker, Retiree, and Employer Recovery Act of 2008 (“WRERA”).

In Notice 2009-98, the IRS says that it will not consider, when reviewing submissions made for Cycle E, any:

— guidance issued after October 1, 2009;

— statutes enacted after October 1, 2009;

— qualification requirements first effective in 2011 or later; or
— statutory provisions that are first effective in 2010, for which there is no guidance identified in the notice.

Terminating plans must include all law changes in effect at the time of termination. The Notice contains special rules for the Heart Act and WRERA.